What is bribery?

To bribe someone means to induce behaviour through a gift or advantage. The gift does not have to be monetary; it can include any kind of benefit such as hospitality or a favour. A bribe is sometimes called an “undue reward”.

Not every gift or reward is considered a bribe. Bribery only occurs if such a reward is used to influence a person to act in a way that contravenes laws, is dishonest, or lacks integrity. Examples of bribery include:

  • Paying a public official to get an inspection report.
  • Paying a customs official to speed up the passage of goods through a port.
  • Employing a public official’s son to influence the award of contracts.
  • Paying the travel expenses of doctors to convince them to prescribe certain products.

 

What is corruption?

Corruption is defined by Transparency International as the “abuse of entrusted power for private gain”. Corruption occurs when someone who has been granted official powers, either public or private, exploits them for his or her own benefit. Bribery is one common form of corruption, but it can include other conduct such as embezzlement or extortion.

 

Corruption and international law

Corruption has devastating global consequences. It erodes trust in the public sector, weakens democracy and slows economic development. It is in the interest of all nations to respond to the threat posed by corruption.Bribery and Corruption Offences

The United Nations Convention against Corruption (UNCAC) is the only binding international treaty dealing with corruption. The UNCAC covers five main issues:

  • Preventive measures directed at both the public and private sectors.
  • Criminalisation and law enforcement.
  • International cooperation.
  • Asset recovery aimed at returning assets to their rightful owners.
  • Technical assistance and information exchange.

The vast majority of United Nations member states are party to the convention, and Australia ratified the UNCAC in 2003.

Other important anti-bribery Conventions include the Organisation for Economic Cooperation and Development’s Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. This Convention aims to suppress bribery in the international corporate sphere.

 

Federal laws against bribery

The federal law in Australian criminalises corrupt conduct both domestically and internationally.

 

Domestic bribery

Section 141 of the Criminal Code Act 1995 (Cth) makes it an offence for a person to dishonestly provide, offer, or cause a benefit to another person with the intent to influence a Commonwealth public official in the exercise of the official’s duties.

Under section 141.1(3), it is also an offence if a Commonwealth public official dishonestly asks for, receives, or agrees to receive a benefit for themself or another person, and does so with the intention that the exercise of his or her official duties will be influenced. It is also an offence for a Commonwealth public official to ask for, receive, or agree to receive a benefit with the intention of inducing, fostering, or sustaining a belief that the exercise of the official’s duties will be influenced.

An individual could be liable under this provision for conduct that takes place overseas, so long as it involved a Commonwealth public official.

 

Foreign bribery

Section 70 of the Criminal Code Act criminalises the bribery of foreign public officials. It is an offence to:

  • Provide, offer, or cause a benefit to be provided to another person,
  • Where that benefit is not legitimately due to that person,
  • With the intent to influence the exercise of a foreign public official’s duties,
  • In order to obtain business or a business advantage.

Read our Submission on the proposed amendments to the foreign bribery offence in the Criminal Code Act 1995.

 

Penalties

For individuals, both domestic and foreign bribery carry a maximum penalty of 10 years imprisonment or a $2,200,000 fine.

For corporations, the maximum penalty is a fine not more than the greatest of the following:

  • A fine of up to $22,200,000, or
  • Three times the value of the benefit (if it can be determined), or
  • If the value of the benefit cannot be determined, 10 per cent of the annual turnover of the company during a 12-month period (concluding at the end of the month in which the offending conduct occurred).

 

NSW laws against bribery

Part 4A of the Crimes Act 1900 (NSW) was designed to deal with corruption in the private sector, but in effect also criminalises a range of bribery offences, both public and private.

Under section 249B it is a crime for an agent to receive or solicit, or for a person to give or offer, any benefit in the following circumstances:

  • As an inducement or reward for doing something or showing favour to any person in relation to the agent’s affairs or business, or
  • Where the receipt of the benefit would “tend to influence” the agent to show favour to any person in relation to the agent’s affairs or business.

The term “agent” includes but is not limited to:

  • Any person employed by or acting on behalf of another person,
  • Any person serving under the Crown,
  • A police officer, or
  • A councillor under the Local Government Act 1993.

Even if the benefit was not offered specifically as an inducement or reward, but would “tend to influence” the agent, the person could still be found guilty. Generally, this is an objective test directed at the intention and not the result.

In both instances, the maximum penalty is seven years imprisonment.

The Crimes Act also contains a range of other offences that are relevant to corruption such as fraud, embezzlement, and perverting the course of justice.

 

Common law offence of bribery

Bribery is also an offence under common law. It deals with the bribery of public officials, and criminalises the “receiving or offering of an undue reward” to any person in a public office, to:

  • Influence that person’s behaviour, and
  • Incline that person to act contrary to accepted rules of honesty and integrity.

 

Frequently Asked Questions

What is the difference between active and passive bribery?

Offering a bribe (even if the offer is rejected) is called “active bribery”, while accepting or requesting a bribe is called “passive bribery”. Both offering someone a bribe and accepting a bribe could be a criminal offence.

Which agencies investigate bribery and corruption in Australia?

Bribery and corruption are typically investigated by:

  • State police,
  • Australian Federal Police, and
  • Australian Securities and Investments Commission (ASIC).

Other institutions like the NSW Independent Commission Against Corruption (ICAC) investigate instances of corruption in the public sector.

Can I be prosecuted for bribery offences committed overseas?

One of the distinguishing features of the Commonwealth legislation is the territorial provisions. The offence has been designed to cover both:

  • Conduct alleged to have occurred in Australia or onboard an Australian aircraft or ship, and
  • Conduct that occurs outside Australia where the accused is an Australian citizen or resident, or the company is incorporated in Australia.

Is every incentive considered a bribe?

No, not every incentive is a bribe. Commissions and bonuses are a common and legitimate part of business dealings. They benefit a company’s efficiency and productivity and help to reward agents.

Additionally, “facilitation payments” are not considered foreign bribery offences under the Criminal Code Act. A facilitation payment is a small payment made to a foreign public official to speed up a minor routine government action.

Where can I learn more about corruption?

Transparency International is an international non-governmental organisation. It aims to combat corruption globally through civil societal anti-bribery and corruption measures.

Transparency International publishes a range of in-depth reports on what causes corruption and how to prevent it. Its “Corruption Perceptions Index” ranks countries by their levels of public sector corruption.

How can we help?

We provide expert advice and representation in complex bribery and corruption matters across multiple jurisdictions.

Book a consultation if you require assistance.

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